When the FBI comes knocking, don't hide laptops in your mom's dishes

So.... When exactly is it illegal to hide my belongings? Can I get time for sliding my laptop between the seats of my sectional couch? I ask because I always do that when I leave my apartment, for fear of a break in.

If you are served with a warrant on something and you intentionally hide it, then yes, that becomes illegal.

So if you got a warrant that listed "any and all computer equipment or storage devices" on it, you texted/called your buddy/sibling/mother and told them to "hide the laptop somewhere in case the feds check your place"...that is very much a crime.

I see we are using the wikileaks standard of everything from death threats to sexual assault as being a form of hacktivism

Neither Wikileaks, nor Assange have to my knowledge ever been accused of making death threats. Assange has not been convicted of sexual assault and is therefore innocent of such a crime until proven guilty in a court of law, and even if he had been found guilty, that would not mean that Wikileaks had done anything wrong.

I frankly cannot understand the resentment of wiki leaks that always pops up in these comments. What's wrong with some transparency and accountability? It's not like Assange and co. were DDoS'ing sites or violating copyrights or any of the other mischief we've seen from guys such as Dotcom and the Anons. All they did was to provide a platform that allowed people to air some dirty laundry.

Title 18, United States Code, Section 1519 makes it a crime to alter, destroy, mutilate,conceal, cover up, falsify, or make a false entry in any record with intent to impede a Federalinvestigation or bankruptcy. For you to find the defendant guilty, the government mustprove each of the following beyond a reasonable doubt:

First, that the defendant altered, destroyed, mutilated, concealed, covered up,falsified, or made a false entry in any record, document, or tangible object;

Second, that the defendant did so with intent to impede, obstruct, or influence theinvestigation or proper administration of any matter within the jurisdiction of anydepartment or agency of the United States, or any case filed under [federalbankruptcy laws], or in relation to or contemplation of any [bankruptcy] case; and

Third, that the defendant did so knowingly.

That's what the prosecutors need to prove to make the charge stick. You can make your own call on how likely that will happen.

Can Crowdsourcing Complete The Job Aaron Swartz Started In Freeing PACER?

We've talked about the importance of carrying on the work that Aaron Swartz began, and the global efforts at hackathons to do just that. However, a few have started working on very specific proposals to try to carry on some of Aaron's work. ... despite being public domain, court filings are locked up in an incredibly antiquated electronic document system that the federal courts all use called PACER. Anyone can get access to PACER (though using the system, which has never been an example of modernity, takes some figuring out), but it costs $0.10 per page to download any documents. That's what Aaron was trying to "free."

While his initial effort, making use of a "trial" at certain libraries allowing free access to PACER was shut down, his downloads did become the crux of the RECAP project, a browser plugin built a few years ago by some Princeton students, which would automatically upload any document you accessed via PACER to the Internet Archive where they could be viewed for free going forward.

Unfortunately, RECAP itself more or less stagnated after many of those behind it left Princeton. However, following Aaron's death, there have been a couple of interesting developments, driven in large part by a different Aaron, Aaron Greenspan. First, he set up three grants of $5,000 each to update the RECAP extension. It's currently only available in Firefox, but there are grants for expanding it to Chrome and to IE, while also updating the Firefox browser to cover appeals court documents. This would be huge. I tend to use PACER via Chrome, so I've been unable to contribute much to RECAP lately.

But the second part of the plan, also put in place by Greenspan, is what he's calling Operation Asymptote,

to try to get lots of people to help out in freeing PACER documents. He's using the one slight exception to the $0.10 per page rule: PACER does not charge you if your total charges add up to less than $15 per calendar quarter. In other words, you can basically download 150 "pages" during a quarter for free. Now, that's not really 150 pages of court documents, since PACER also charges for searches. And, since some court documents can be pretty long, 150 pages can actually go pretty fast. But Greenspan is suggesting that if we can get a lot of people to sign up for PACER (and RECAP) and download a small amount, keeping under the $15 line, then effectively, a large group of people might free large parts of the public domain material in PACER for free (you need to have a valid credit card to sign up, but if you keep under the $15, then you don't get charged).

This is being done in association with Greenspan's PlainSite, [ http://www.plainsite.org/ ] a site which tries to make legal information as public as possible (we've linked to them in the past for their research into Intellectual Ventures' shell companies). Part of the goal is to actually pull together the details of cases worked on by "every US Attorney or Assistant US Attorney" during their career. For example, you could look at cases involving Stephen Heymann or those involving Carmen Ortiz. On the Operation Asymptote page, they even have a link that will automatically point you to cases where they're missing documents, so it's one click easy.

As far as encryption goes, it doesnt really help in these situations. The vast majority of the hacker community already encrypts their data and drives, but in a situation like this where the drives/machines are seized for evidence, the courts can order the accused to provide the decryption codes/phrases.

Reread this section of the Wikipedia page you are referring to - it contradicts your conclusion!

Wikipedia wrote:

In United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment. [...] the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment. [...]

Guy from Anonymous gets the book thrown at him for illegal activities, but when governments do it (eg: stuxnet, et.al.) ... "oh, we're not sure who did that, and we can't spare the man-power to look into".

It is not out-of-bounds to demand the full set of keys or passwords required to access the files that may establish your guilt or innocence.

Yes, it IS out of bounds. It violates the defendant's Fifth Amendment rights - and violating the Bill of Rights is a very bad idea.

I'm reminded of a video the NRA showed where some cops basically abuse this guy's rights.

He was shooting some guns on his own property. Cops got called by a concerned citizen hearing the gun shots. They show up to his place, and start jumping over the gate to get on his property, tell him to drop his weapon, etc.

Then, out of his ear-shot, they start arguing over whether they have the right to go into his house without a warrant to search. They have it in their head that this guy is up to no good, and want to search his home. So, they trump up the idea that he may be holding someone hostage inside as a way to bypass the need for a search warrant (can't remember the exact legal term they called it, but it was basically "extenuating circumstances let us break into your house without a warrant and not consider it a violation of your rights.")

They don't find anyone in the house. They DO come across a gun safe... locked. They tell the guy to give them the keys ... he declines. So, once again they use the "extenuating circumstances" excuse to reach into his pockets, take his keys, and go unlock the gun safe. They collect all the guns, remarking about how some of them are amazing and wouldn't mind keeping them for themselves.

They don't want to look like they violated this guy's rights, so they decide to arrest him for "shooting at traffic". The guy had set up a small shooting area on the side of his property. He was test-firing some weapons. The direciton the gun fire was going was no where near any roads or traffic.

I don't think I ever heard the out-come of this case, but it was pretty messed up.

If cops want to search your property, or open something ... you dont' have to cooperate. Then again, if you don't, they may screw up the object opening it (smashing a lock, hosing up the data on your device while decrypting it, etc).

As far as encryption goes, it doesnt really help in these situations. The vast majority of the hacker community already encrypts their data and drives, but in a situation like this where the drives/machines are seized for evidence, the courts can order the accused to provide the decryption codes/phrases.

Reread this section of the Wikipedia page you are referring to - it contradicts your conclusion!

Wikipedia wrote:

In United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment. [...] the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment. [...]

If he's made a mistake and did not cover up his tracks well enough so that they can link that specific laptop to the crime in question, then the 5th Amendment does not apply and he can be ordered to decrypt the files. The question comes down to whether or not he made that mistake. As it stands right now, I think only those in the courtroom know the answer to that for sure. Certainly no one at Ars does.

I could be wrong, but you seem to be under the impression that this ruling provides 5th Amendment protection for a person against decrypting their computer, whereas it only provides 5th Amendment protection if the computer is only suspected of being the one used in a crime. If they can prove a connection between the equipment, and the crime... you're boned.

The reason for the ruling is that computers are capable of holding more than one file simply enough. The protection is extended because aside from hacking, a person may also be have files incriminating them of money laundering, or something that will really get them in trouble, bootlegging Hollywood blockbusters.So, he ruling you're citing is more about the 5th Amendment protection against self-incriminating for other crimes committed not related to the specific (alleged) crimes being charged.

I rarely agree with prison sentences that do not involve violence. Does the potential punishment fit the crime, or is there something wrong with our legal system?

How about billion dollar Ponzi schemes? Do we not lock them up because they never hurt anyone? If anything, the ringleader is probably a charming charismatic likeable fellow, or people wouldn't have given them all that money.

Anyway, I agree that some crimes which carry jail sentences really shouldn't. Especially the young men committing computer crimes. Make them pay off every cent of damages that they've caused. How about the good old fashioned choice given to them by the judge: x-punishment, or join the Army? That works.

How about billion dollar Ponzi schemes? How is paying for the perpetrator to sit in prison helping anyone? Why not just make them pay back every penny they stole and then some?

I rarely agree with prison sentences that do not involve violence. Does the potential punishment fit the crime, or is there something wrong with our legal system?

You wouldn't want someone who commits wire fraud or identity theft thrown in jail because it doesn't involve violence? Getting hurt financially can be just as devastating as physical / verbal violence imo.

While I agree there are times the crime doesn't fit the punishment, just because the crime isn't violent shouldn't equate to no jail time.

Getting hurt financially is a condition that is easily reversible, unlike physical violence. If my house is robbed, I would rather be reimbursed for everything I lost than have the "satisfaction" of knowing someone was in prison and unlikely to ever pay me back.

People need to learn to distinguish punishment and remuneration from vengeance.

As far as encryption goes, it doesnt really help in these situations. The vast majority of the hacker community already encrypts their data and drives, but in a situation like this where the drives/machines are seized for evidence, the courts can order the accused to provide the decryption codes/phrases.

Reread this section of the Wikipedia page you are referring to - it contradicts your conclusion!

Wikipedia wrote:

In United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment. [...] the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment. [...]

If he's made a mistake and did not cover up his tracks well enough so that they can link that specific laptop to the crime in question, then the 5th Amendment does not apply and he can be ordered to decrypt the files. The question comes down to whether or not he made that mistake. As it stands right now, I think only those in the courtroom know the answer to that for sure. Certainly no one at Ars does.

I could be wrong, but you seem to be under the impression that this ruling provides 5th Amendment protection for a person against decrypting their computer, whereas it only provides 5th Amendment protection if the computer is only suspected of being the one used in a crime. If they can prove a connection between the equipment, and the crime... you're boned.

The reason for the ruling is that computers are capable of holding more than one file simply enough. The protection is extended because aside from hacking, a person may also be have files incriminating them of money laundering, or something that will really get them in trouble, bootlegging Hollywood blockbusters.So, he ruling you're citing is more about the 5th Amendment protection against self-incriminating for other crimes committed not related to the specific (alleged) crimes being charged.

That is false, and I already told you exactly why it is false. The government must have independent evidence of specific documents. The police can suspect you of whatever they wish - but without evidence identifying a specific document with a specific relationship to a specific crime, they cannot forcibly search your computer. Even if they can prove that the computer is linked to some kind of crime involving some kind of file, they are still unable to decrypt your computer once you have raised your Fifth Amendment objection.

In a government the GOP Congress has sworn to defund (starve the beast theme), the FBIs smaller teams and lack of funding really should be prioritizing investigations of gasoline price fixing, artificial shortages, Wall Street fraud, and *all* those things most Americans *know*, even the investigators, needs to be remedied.

When I see these kinds of cases, I wonder if we can't start applying some progressive thinking again. If the impact of an intentional crime is say, 1 trillion dollars, shouldn't there be a massive funding of the FBI and Justice to bring the criminals to justice?

If there's a play on the 'net that literally *could be construed* to cost a record company $11, shouldn't the Mom simply be held accountable for that $11, plus a $500 fine? That's more along the lines of reasonable justice, we have to, as society, look at what is *fair*.

Using the same brinksmanship and threats Justice and the FBI use to bring down hardened mafia, economic terrorists, soulless greed and murdering criminals on small hacktivists is entirely overreaching in my opinion. How do we change that?

I rarely agree with prison sentences that do not involve violence. Does the potential punishment fit the crime, or is there something wrong with our legal system?

You wouldn't want someone who commits wire fraud or identity theft thrown in jail because it doesn't involve violence? Getting hurt financially can be just as devastating as physical / verbal violence imo.

While I agree there are times the crime doesn't fit the punishment, just because the crime isn't violent shouldn't equate to no jail time.

We learned from the Aaron Swartz case that "Wire Fraud" can be as simple as changing your MAC or IP address.

As far as encryption goes, it doesnt really help in these situations. The vast majority of the hacker community already encrypts their data and drives, but in a situation like this where the drives/machines are seized for evidence, the courts can order the accused to provide the decryption codes/phrases.

Reread this section of the Wikipedia page you are referring to - it contradicts your conclusion!

Wikipedia wrote:

In United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment. [...] the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment. [...]

As I stated, the prosecuting agencies can petition the courts to have this done forcibly and it is then up to the judge to agree or disagree with it. There is no solid blanket law that provides protection to encrypted drives and privacy. That ruling does not apply to every case as the issue has never been addressed by the US Supreme Court. This was the case I mentioned that was briefly in the news about it.

In this particular instance, it seems and I do not know the entirety of the case facts that the seizure of the equipment was very specific and they were looking for a specific laptop which likely means they have evidence of some form that it was used in one of the charges which now gives them leverage to petition to have the drives decrypted. Without an actual law or Supreme Court ruling, simply having a MAC address of an offending machine with encrypted drives could be grounds enough for some judges to say that its already been incriminated and therefore must be decrypted for further analysis.

Honestly what it ends up coming down to is a decision on the part of the person accused. If they know that there is information on the drives that could potentially be used against them to further existing charges or levy more, they can opt to not comply and face the sentence for that instead if it carries a lesser sentence. Unfortunately there isn't any clearly outlined law guiding that, so it again befalls the individual judge to decide the "appropriate punishment" for non-compliance. Plus, in a Jury trial, an action like that could be used by prosecution to sway suspicion against the defendant which isn't all that good either. Since the vast majority of the public doesn't properly understand encryption nor does the majority view privacy with a strict protection, they might be persuaded by prosecutors with the whole "if you have nothing to hide..." garbage argument. There are quite a lot of people in this country who honestly believe that crap of "If you have nothing to hide, then why are you so concerned" nonsense.

Is this going to be a thing now? Constant pissing and moaning about the adversarial nature of our courts?

Is every interview with a lawyer in a criminal case going to end with "If you add up all the possible time from the charges, my client could get ninety-nine million yeas! This is nothing but one of those scumbag government pressure tactics!"

It must be an interesting life to assume that everything the government does is good and in our best interest. It takes any responsibility off of ourselves to think critically and perhaps work to make the world better.

Yes, it IS out of bounds. It violates the defendant's Fifth Amendment rights - and violating the Bill of Rights is a very bad idea.

Unless the ownership of the item in question is in doubt, how does this constitute testifying against yourself? (If the ownership of the item is in question, then you can easily plead the fifth on the grounds that providing a password/combination to the safe would imply it was yours, which would constitute testimony against yourself)

You have to understand there is no precedent here. It is not entirely clear whether you can be compelled to give up the combination to a combination safe via court order; if you can be, then you can indeed be compelled to decrypt your laptop by court order. If you can't, then you can't.

The PROBLEM (which many of you seem not to understand) is that the Fifth Amendment gives you the right to not TESTIFY against yourself. However, you CAN be compelled by court order to surrender PHYSICAL evidence - documents and the like. It can be rather easily argued that the contents of a computer represents not testimonial but physical evidence. Ergo, they can compel you to provide said physical evidence, and can hold you in contempt if you refuse to do so.

It may be that they cannot compel you to give up your password or your safe combination, but this doesn't mean what you think it means.

They CAN compel you to give up documents that are protected by said means, and hold you in contempt for refusing to do so. So even if they do say you don't have to decrypt your computer or provide the combination for your safe, it may be that they could still hold you in contempt of court for refusing to give up the physical evidence in question which is protected by said means.

This is well-established as a point of law. A lot of people don't really understand what this is about in the first place. Really its just about what they can force you to do - failing to provide physical evidence that you have been ordered to give up will still let you be held in contempt, regardless of the encryption status of your machine or the fact that you keep the relevant documents in your combination safe in the family vault.

As far as encryption goes, it doesnt really help in these situations. The vast majority of the hacker community already encrypts their data and drives, but in a situation like this where the drives/machines are seized for evidence, the courts can order the accused to provide the decryption codes/phrases.

Reread this section of the Wikipedia page you are referring to - it contradicts your conclusion!

Wikipedia wrote:

In United States v. Doe, the United States Court of Appeals for the Eleventh Circuit ruled on 24 February 2012 that forcing the decryption of one's laptop violates the Fifth Amendment. [...] the courts have held that when the government already knows of the existence of specific incriminating files, compelling a suspect to produce them does not violate the Fifth Amendment's rule against self-incrimination. On the other hand, if the government merely suspects that an encrypted hard drive contains some incriminating documents, but lacks independent evidence for the existence of specific documents, then the owner of the hard drive is entitled to invoke the Fifth Amendment. [...]

As I stated, the prosecuting agencies can petition the courts to have this done forcibly and it is then up to the judge to agree or disagree with it. There is no solid blanket law that provides protection to encrypted drives and privacy. That ruling does not apply to every case as the issue has never been addressed by the US Supreme Court. This was the case I mentioned that was briefly in the news about it.

In the article you are referring to, the low-level judge's initial ruling came before the 11th Circuit ruling upholding Fifth Amendment rights (and thus did not take that precedent into account), but the appeal was not heard because local rules require that the low-level case be completed first. So the defendant's correct course of action is to refuse to supply the password based on Fifth Amendment rights and finish the trial. If found not guilty, good. If convicted, reassert the appeal, citing the 11th Circuit and the Fifth Amendment.

What is at issue is whether the act of production may have some testimonial quality sufficient to trigger Fifth Amendment protection when the production explicitly or implicitly conveys some statement of fact. ... The touchstone of whether an act of production is testimonial is whether the government compels the individual to use “the contents of his own mind” to explicitly or implicitly communicate some statement of fact. ... the decryption and production of the hard drives would require the use of the contents of Doe’s mind and could not be fairly characterized as a physical act that would be nontestimonial in nature. We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files. ...

It is because of the Government’s lack of knowledge in this case that we can easily distinguish another recent decision, United States v. Fricosu, No. 10-cr-00509-REB-02, 2012 WL 182121 (D. Colo. Jan. 23, 2012). In Fricosu, the Government, after seizing a laptop computer suspected of containing incriminating information, was unable to access certain encrypted portions of the computer. Id. at *2. The Government sought a court order requiring Fricosu to produce the unencrypted contents of the computer, and Friscosu invoked her Fifth Amendment privilege against self-incrimination. Id. The court then concluded that no testimony was associated with the compelled production of the unencrypted contents of her laptop computer. Id. at *4. In reaching this conclusion, the court heavily relied upon a tape recording of a phone call introduced by the Government between Friscosu and another individual, where the defendant admitted, “[The content at issue] was on my laptop.” Id. at *2. Friscosu later confirmed in the call that the content existed when she was asked, “It was on your laptop[?],” and Friscosu responded, “Yes.” Id. Throughout this extensive exchange, Friscosu essentially admitted every testimonial communication that may have been implicit in the production of the unencrypted contents. Here, in contrast, the Government does not know whether any files are present on the encrypted drive; if any, what their location on the drive may be; whether Doe has access and control to the encrypted drives; and whether Doe is capable of decryption. ...

Supreme Court precedent is clear: Use and derivative-use immunity establishes the critical threshold to overcome an individual’s invocation of the Fifth Amendment privilege against self-incrimination. No more protection is necessary; no less protection is sufficient. ...

We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not to give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED. SO ORDERED.

How have computer using criminals not figured out Truecrypt and the fact that microSD cards are so small they are easily swallowed yet?

snip

2 - microSD cards are probably left unusable after the "process", but you're right about these cards can be hidden so quick and easily.

The microSD cards come through the process just fine in most cases. The plastic of the case is virtually impervious to stomach HCL. The metal tabs might be corroded somewhat if the tabs are not flashed with gold. An xray will reveal them in your digestion track. Narc cops are wise to the microSD flash drive trick. You're better off flushing them down the toilet or grinding them with a garbage disposal. Even better, 30 seconds in a microwave.

But if you just want to destroy the information you can cut through the card/ICs with a pair of scissors.

I rarely agree with prison sentences that do not involve violence. Does the potential punishment fit the crime, or is there something wrong with our legal system?

You wouldn't want someone who commits wire fraud or identity theft thrown in jail because it doesn't involve violence? Getting hurt financially can be just as devastating as physical / verbal violence imo.

While I agree there are times the crime doesn't fit the punishment, just because the crime isn't violent shouldn't equate to no jail time.

Just re-purpose them, prison are just inefficient use of potential work force, it not too hard to come up with any kind of public work that they will have to do, which if they refuse to comply, then you can start thinking about binding them against their will with something like prison.

That way you can save quite on the expense, has has you can leave them enough free time to also have a 2nd work to pay their bill, or you can ensure their basic need at a lower cost then prison has you don't have to pay for 24/7 security.

So.... When exactly is it illegal to hide my belongings? Can I get time for sliding my laptop between the seats of my sectional couch? I ask because I always do that when I leave my apartment, for fear of a break in.

When you know your belongings could be material evidence in criminal or civil litigation. That's why when you're the CFO of the next Enron and you hear that your former employee just spilled the beans to the SEC and IRS, you're committing a crime if you decide to shred all your financial documents even though they're the property of the company.

There is a difference between shredding documents, and placing personal property in an unusual location within a familial residence, wouldn't you agree? It's a dangerous standard to allow citizens to be prosecuted on the basis that personal property isn't in a location that investigators would expect to look. Is there to be a list of acceptable locations for items or is "concealment of evidence" based upon the prosecutors opinion without definition? If I neglect to pay taxes, and am prosecuted for tax evasion, would I also be potentially guilty of "concealment of evidence" if I have financial records under the mattress, in a box in the kitchen cupboards, or in the closet in my mother's house? This charge should be left off.

Gee, could this possibly have been fully explained in the 11th Circuit ruling that I already provided you a link to, but which you apparently didn't bother to actually read???

Did you actually bother to read it? Because it agrees with me.

United States Court of Appeals, 11th Circuit wrote:

We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

Gee, could this possibly have been fully explained in the 11th Circuit ruling that I already provided you a link to, but which you apparently didn't bother to actually read???

Did you actually bother to read it? Because it agrees with me.

United States Court of Appeals, 11th Circuit wrote:

We conclude that the decryption and production would be tantamount to testimony by Doe of his knowledge of the existence and location of potentially incriminating files; of his possession, control, and access to the encrypted portions of the drives; and of his capability to decrypt the files.

No, it totally contradicts your position. Such testimony would constitute forced self-incrimination, which is prohibited by the Fifth Amendment. That is exactly why the government lost the case.

No, it totally contradicts your position. Such testimony would constitute forced self-incrimination, which is prohibited by the Fifth Amendment. That is exactly why the government lost the case.

Yes. Which is exactly what I said.

Titanium Dragon wrote:

Unless the ownership of the item in question is in doubt, how does this constitute testifying against yourself? (If the ownership of the item is in question, then you can easily plead the fifth on the grounds that providing a password/combination to the safe would imply it was yours, which would constitute testimony against yourself)

Illiteracy is a terrible thing, but it is never too late to learn how to read.

If they have specific knowledge of material on your computer, they can get a court order for you to provide the physical evidence. This does not constitute testimony against yourself. It is the same reason that they can compel companies to provide documents, emails, ect.

They cannot go fishing. The reason the government was not able to compel Doe to decrypt the laptop was because they were going fishing - they didn't have specific knowledge of the files.

More or less, the difference is this:

If you have a computer with child porn on it, and someone sees you looking at child porn on it, then you shut it down, they can compel you to decrypt the computer to produce the child pornography you were viewing.

If they find a computer in the park, with no fingerprints on it, that they suspect you ditched after you used it to hack into the CIA, they cannot compel you to decrypt it because your ability to decrypt it would suggest that you had access to said laptop - they cannot compel you to do this because it would constitute testimony against yourself. If they had video of you using it, and the MAC address of the computer matched the one used to get into the CIA, then they could force you to decrypt it and give them specifically requested data, because at that point you are no longer testifying against yourself - that you were using the computer in the park on day X would be an established fact at that point, so the contents are physical evidence, and your handing it over would not violate your fifth amendment rights for the same reason that giving a DNA sample doesn't infringe upon your fifth amendment rights. And yes, they can actually force you to give a DNA sample with a court order. Same with fingerprints and other physical evidence.

Yes, it IS out of bounds. It violates the defendant's Fifth Amendment rights - and violating the Bill of Rights is a very bad idea.

Unless the ownership of the item in question is in doubt ...

The "item in question" being referred to here is a TrueCrypt-encrypted micro-SD card, and the context is that the police do not have any evidence relating to what may or may not be on that card. They can seize the card for investigative purposes, but they cannot decrypt the card, and once the Fifth Amendment is asserted by the defendant they cannot get the password from the defendant either.

Titanium Dragon wrote:

It may be that they cannot compel you to give up your password or your safe combination, but this doesn't mean what you think it means.

They CAN compel you to give up documents that are protected by said means, and hold you in contempt for refusing to do so. So even if they do say you don't have to decrypt your computer or provide the combination for your safe, it may be that they could still hold you in contempt of court for refusing to give up the physical evidence in question which is protected by said means.

This is well-established as a point of law. A lot of people don't really understand what this is about in the first place. Really its just about what they can force you to do - failing to provide physical evidence that you have been ordered to give up will still let you be held in contempt, regardless of the encryption status of your machine or the fact that you keep the relevant documents in your combination safe in the family vault.

No, the judge cannot hold you in contempt for correctly exercising your Fifth Amendment rights. Any such order would be immediately overturned upon appeal. The judge would quickly receive a forceful smackdown.

The late Internet activist was facing a stern warning from local prosecutors. But then the U.S. Attorney's office, run by Carmen Ortiz, chose to make an example of Aaron Swartz, a new report says.

by Declan McCullagh January 25, 2013 1:14 PM PST

State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.

Middlesex County's district attorney had planned no jail time, "with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner," the report (alternate link) said. "Tragedy intervened when Ortiz's office took over the case to send 'a message.'"

... "Continuance without a finding" was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance ("continued") without any verdict ("without a finding"). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for "trespassing at MIT." But then the feds took over the case, and the rest is tragic history. ...

So.... When exactly is it illegal to hide my belongings? Can I get time for sliding my laptop between the seats of my sectional couch? I ask because I always do that when I leave my apartment, for fear of a break in.

It's illegal when the person knowingly hides an item that is requested as evidence. Of course, the prosecution will have to prove the "knowingly" part.

The government can "request" whatever it wants, but that's certainly not carte blanche allowing the government to force a person to incriminate himself. If they came back with a search warrant and found what they were looking for as specified in the warrant, then that is only their due. If the government simply asked him to relinquish his laptops sans a search warrant in the first instance, how is he guilty of breaking the law by forcing them to obtain a search warrant?

Defendants are under no legal obligation to aid and abet the government in building a criminal case against them. Something seems to be missing from this article.

I rarely agree with prison sentences that do not involve violence. Does the potential punishment fit the crime, or is there something wrong with our legal system?

You wouldn't want someone who commits wire fraud or identity theft thrown in jail because it doesn't involve violence? Getting hurt financially can be just as devastating as physical / verbal violence imo.

While I agree there are times the crime doesn't fit the punishment, just because the crime isn't violent shouldn't equate to no jail time.

Putting the said person in jails solves what? It does not solve the problem for the person who has been 'robbed' - thus no justice to him. And you are locking him up so that in future he does not cause harm to another; which is unjust too because you don't know if he will do that again; or you are punishing him ahead of a crime that he 'may' commit in future. The style of justice is based on a principle or idea that is fundamentally flawed. And finally, robbing someone of his freedom is a punishment conceived out of thin air, for lack of a more humane and in depth thinking on how to solve the problem. Jail works because that just seems like the easiest thing to do.

I seem to remember fighting a Cold War for decade after decade against a state that imprisoned people for arbitrary reasons. It is so sad that America is becoming that enemy that we spent so long fighting against. There is evil in this world and its not an idea like "central government" its in how the law works, who has rights and how power is used. The individual has been left behind and is now utterly powerless, be afraid, be very afraid.

I rarely agree with prison sentences that do not involve violence. Does the potential punishment fit the crime, or is there something wrong with our legal system?

You wouldn't want someone who commits wire fraud or identity theft thrown in jail because it doesn't involve violence? Getting hurt financially can be just as devastating as physical / verbal violence imo.

While I agree there are times the crime doesn't fit the punishment, just because the crime isn't violent shouldn't equate to no jail time.

Putting the said person in jails solves what? It does not solve the problem for the person who has been 'robbed' - thus no justice to him. And you are locking him up so that in future he does not cause harm to another; which is unjust too because you don't know if he will do that again; or you are punishing him ahead of a crime that he 'may' commit in future. The style of justice is based on a principle or idea that is fundamentally flawed. And finally, robbing someone of his freedom is a punishment conceived out of thin air, for lack of a more humane and in depth thinking on how to solve the problem. Jail works because that just seems like the easiest thing to do.

I generally do agree with SgtCupCake that prison time should be reserved for violent criminals.

However, the argument for locking up non-violent offenders is usually for the supposed deterrent effect. That is, if there is a threat of prison time then future would-be offenders will think twice. I think this is fine in principle, but in the US it has become perverse such that it is more about revenge than deterrence. Realistically most people don't break laws that are grounded in reason. For example, I don't need a law to tell me that stealing is bad. It's obvious to me why society doesn't allow that. For people that do need laws, I tend to doubt that there is much difference between a 45-year sentence and 1 year in terms of deterrence. This is simply because criminals don't expect to get caught. For people who are breaking/bending laws out of principle, no amount of prison time is truly a deterrent. For these reasons, I am OK with a threat of some prison time for non-violent offenders. But if we can't demonstrate a deterrent effect then we should save our money and find more appropriate sentences.

Also, we should be asking ourselves if the laws are actually good laws when they require the threat of prison to deter people from breaking them.

No, the judge cannot hold you in contempt for correctly exercising your Fifth Amendment rights. Any such order would be immediately overturned upon appeal. The judge would quickly receive a forceful smackdown.

You clearly haven't been reading Ars very long. Look at every corporate case ever where people ask after the other company's emails. If you could plead the fifth, then these emails would never get to the other company. But they do.

Physical evidence is not covered under the fifth amendment.

Quote:

State prosecutors who investigated the late Aaron Swartz had planned to let him off with a stern warning, but federal prosecutor Carmen Ortiz took over and chose to make an example of the Internet activist, according to a report in Massachusetts Lawyers Weekly.

Middlesex County's district attorney had planned no jail time, "with Swartz duly admonished and then returned to civil society to continue his pioneering electronic work in a less legally questionable manner," the report (alternate link) said. "Tragedy intervened when Ortiz's office took over the case to send 'a message.'"

... "Continuance without a finding" was the anticipated disposition of the case were the charge to remain in state court, with the Middlesex County District Attorney to prosecute it. Under such a disposition, the charge is held in abeyance ("continued") without any verdict ("without a finding"). The defendant is on probation for a period of a few months up to maybe a couple of years at the most; if the defendant does not get into further legal trouble, the charge is dismissed, and the defendant has no criminal record. This is what the lawyers expected to happen when Swartz was arrested for "trespassing at MIT." But then the feds took over the case, and the rest is tragic history. ...

Nothing like people washing their hands of it after the fact.

And really, he wasn't doing his job letting him off the hook anyway. Probably why they took over really; he had already pulled that stunt with PACER, so they wanted to nail him for the behavior this time when he stepped over the line into the territory of illegal action.

Quote:

I generally do agree with SgtCupCake that prison time should be reserved for violent criminals.

That's moronic. Only idiots hold to that.

Non-violent crimes are not inherently less serious than violent crimes. Indeed, many of them are significantly worse.

IT not only acts as deterrent, but it also prevents them from committing more crimes while imprisoned.

And prison is a deterrent for honest people, and a very real one.

But of course, if someone never was going to be allowed out, wouldn't it be more humane to put them down?

Really it's just stupid at this point to go with the status quo. It's clear that the current system in the US does not work. It doesn't deter and it doesn't prevent. There are places with far different approaches to prison (Norway, for example) that do have lower crime rates. I don't know the answer, but I can say for sure that what we're doing right now isn't it.

No, the judge cannot hold you in contempt for correctly exercising your Fifth Amendment rights. Any such order would be immediately overturned upon appeal. The judge would quickly receive a forceful smackdown.

You clearly haven't been reading Ars very long. Look at every corporate case ever where people ask after the other company's emails. If you could plead the fifth, then these emails would never get to the other company. But they do.

Physical evidence is not covered under the fifth amendment.

Corporations don't HAVE Fifth Amendment rights. Natural persons, on the other hand, do.